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Health & Safety at Work Act 1974 – Section 40

Comment 21st July 2010

This piece of legislation requires as section 40 the following;

In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement

This section should be repealed or amended so that it is for the prosecution to show that the defendant did not do what they should have done

Why does this matter?

It reverses the burden of proof – the defendant should not have to prove that what was done was reasonably practicable . The HSE, an enforcing & prosecution authority, will not advise as to what is reasonable practicable etc. prior to an accident but will be quick to advise that one did not do what was reasonably practicable after an accident. It is also nearly impossible to get a straight answer from highly-paid health & safety consultants, who will equivocate and wriggle and make vague, non-committal statements. The defendant will often try to do their best in the absence of clear advice from HSE/Consultants and will be taken to court when something goes wrong. Since HSE are the only people who can say what is reasonably practicable and will only say this after an incident, how can the defendant prepare a proper defence. if they don't know what the HSE case is? Its like Joesph K in 'The Trial' by Franz Kafka – sinister forces expect him to defend himself against charges he is not permitted to know – HSE expects employers ton obey the law but will only tell them that they have broken it! The HSE should be made to prove that the defendant didn't act as required by the law

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